SARAT CHANDRA MAJUMDAR Vs. PRASANNA KUMAR GOPE

JUDGEMENT

(1.) THE substantial point which has been argued in this appeal by Babu Trailokya Nath Ghose on behalf of the appellants is that the lower Appellate Court has not sufficiently considered the question of abandonment by the plaintiff under Section 87 of the Bengal Tenancy Act. THE passage in the judgment of the lower Appellate Court to which exception has been taken runs as follows : "It has been proved that defendants Nos. 4 and 5 possess under the plaintiff and they have not abandoned, they hold other lands of plaintiff under Jnan Mujumdar and they never surrendered the lands. No case of abandonment by plaintiff can be entertained." THE facts are as follows : Defendants Nos. 4 and 5 are bargadars under the plaintiff. THE plaintiff executed a mortgage of the holding in favour of one Jnanendra. Defendants Nos. 4 and 5 now hold under the plaintiff's mortgages Jnanendra. Now, these being the facts, the lower Appellate Court held that, so far as defendants Nos. 4 and 5 are concerned, it was quite clear that they had not abandoned and the last sentence in the judgment of the lower Appellate Court to which we have referred meant that, so far as the plaintiff was concerned, there had been no abandonment of the holding by the plaintiff. Whether there has been an abandonment or not is in each case a question of fact. See in this connection the decision in the case of Monohar Pal V/s. Ananta Moyee Dasya (1913) 17 C.W.N. 802. In that view of the matter it would appear that no real complaint can be made against the judgment of the lower Appellate Court. But the matter does not rest there. THE question of abandonment was not specifically raised in the written statement. So far as one can gather from the judgment of the Court of first instance, no specific issue regarding this question was framed and, in the circumstance, it is difficult to say that the judgment of the lower Appellate Court is wrong on the question to which our attention has been drawn.

(2.) IN that view of the matter, the appeal fails and must be dismissed with costs.